Media Backgrounder
Man Who Lost Legs to Smoking Asks Judge to Punish R.J. Reynolds in Kansas City, Kansas

May 18, 2002  

Contact:  Richard A. Daynard
Edward L. Sweda, Jr. or
Mark A. Gottlieb
617-373-2026
media@tplp.org

 

On February 22, 2002, a Kansas City, Kansas jury returned a verdict in favor of 66 year-old plaintiff  David Burton in a smoking and health lawsuit against R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corporation.  Mr. Burton’s injuries include the amputation of his legs as a result of peripheral vascular disease caused by smoking. 

The award for compensatory damages is $198,400 and all but 1% of it applies to Reynolds.  Brown & Williamson is responsible for 1% because it is the successor to the American Tobacco Company, whose products Mr. Burton used on occasion. The jury also determined that punitive damages against Reynolds are justified.  Today, federal judge John W. Lungstrum held a hearing on punitive damages against R.J. Reynolds.

 Trial Background:

Kansas native and former railroad worker, David Burton, filed his lawsuit against R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp. on May 25, 1994, a year after being diagnosed with peripheral vascular disease.  He began smoking in the early 1950s.  Unlike most plaintiffs in tobacco cases, Mr. Burton filed his case in federal court where Chief Judge Lungstrum presides. 

Peripheral vascular disease (PVD) is caused by the same atherosclerotic plaque that causes coronary artery disease, but with PVD, the arteries supplying blood to the extremities are affected.  The risk of peripheral vascular disease is dramatically increased in smokers. When a person stops smoking, regardless of how much he or she may have smoked in the past, the risk of peripheral vascular disease rapidly declines, as it does with heart disease.

The eight jurors’ verdict for the plaintiff was unanimous. Unlike prior verdicts against tobacco companies where the jury determined punitive damages, under Kansas law, that responsibility is left to the trial judge. 

Mr. Burton’s claims included negligent failure-to-warn; strict liability for defective design and failure-to-warn; and fraudulent concealment and conspiracy to conceal information about PVD and the addictiveness of the defendants’ products.

Mr. Burton is represented by Ken McClain and Don Louden of the Kansas City, MO firm of Humphrey, Farrington, McClain, and Edgar. 

In its brief, the plaintiff alleges that R.J. Reynolds has known for more than 50 years that its products kill and for more then 40 years that they are addictive.  He also notes that Reynolds' became very rich by not acting in a responsible manner on the information it possessed about smoking and health.   Click here to read the entire brief.  To see more about the trial, see our first Backgrounder and Commentary on this case here.

Judge Lungstrum took the matter under advisement and will issue a ruling in 30-60 days, a relatively short period of time.

Plaintiff's attorney, Ken McClain, referenced several documents regarding RJR's misconduct, namely conspiracy to conceal effects of smoking that cause peripheral vascular disease.

R.J. Reynolds' attorneys  tried to narrow the scope of the argument, focusing the attention on Mr. Burton's conduct and trying to draw attention away from the broader conspiracy charges.  The defense argued that Mr. Burton would have smoked anyway, even if he had known about the addiction component of Reynolds' cigarettes and the effects of peripheral vascular disease.

RJR heavily stressed that the Master Settlement Agreement with the states (reached in 1998) satisfied any legitimate claims for punitive damages that may have been made.

Attorneys McClain asked judge Lungstrum, echoing the words of federal judge Sarokin a decade earlier (in Haines v. Liggett), "who are these people who would put the life of a customer at stake for the sake of more profits?"

 Commentary:

Tobacco Products Liability Project Senior Attorney Edward L. Sweda, Jr., who attended the Kansas hearing noted:

"It is interesting that R.J. Reynolds argues that it should not be punished by the Kansas court because it entered into a settlement with the states in 1998.  Reynolds voluntarily settled with the states in 1998 to avoid further litigation because it felt that it was in its interests to do so and certainly not out of some self-directed desire to change its ways.  Reynolds was ordered by a California judge earlier this month to pay nearly $15 million for illegally distributing free samples of cigarettes where children were present in 1999.  Clearly, Reynolds has not really changed since the days it deceived Mr. Burton and the millions of other customers its products have left dead or disabled."

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